Journals
Volume 37, No. 2, Spring 2007
¿La Raza Latina?: Multiracial Ambivalence, Color Denial, and the Emergence of a Tri-Ethnic Jurisprudence at the End of the Twentieth Century
Tom I. Romero, II
¿La Raza Latino?: Multiracial Ambivalence, Color Denial, and the Emergence of a Tri-Ethnic Jurisprudence at the End of the Twentieth Century is a recent legal history concerning the complicated, inconsistent, and dramatic transformation in the jurisprudential meaning and legal consequence of race, color, and ethnic categories in the last decades of the twentieth century. Linking school desegregation, bilingual education, and affirmative action jurisprudence to the dramatic growth of the nation’s Latina/o community in the second half of the twentieth century, Professor Romero documents the reasons behind the inability of American law to understand conceptually the idea of a "Latino race."
As Professor Romero documents in the article, three United States Supreme Court equality-of-education cases—Keyes v. School District No. 1 (1973), Lau v. San Francisco Unified School District (1974), and University of California v. Bakke (1978)—formed the foundation of what he calls a “tri-ethnic jurisprudence.” As the issues in each case came to be formulated in the lower courts as a direct result of the presence of Latino and other students of color in the litigation, Professor Romero argues that the emerging "tri-ethnic jurisprudence" minimized or completely obscured the importance of color privilege to the legal analysis. For Latina/os, who historically had been legally racialized as "other White" and "other Black," such a development provided an inconsistent and loosely coherent body of jurisprudence through which to assure equal rights. Ultimately, Professor Romero details how such cases reinforces the dichotomies of U.S. law (i.e., Black/White, minority/non-minority, English/non-English, American/non-American) without confronting the distinct racialization of Latina/os in American culture and without acknowledging the emergence of a more complicated color line in a multiracial nation.
No Cake for Zuni: The Constitutionality of New Mexico’s Public School Capital Finance System
Lynn Carrillo Cruz
New Mexico is well known for its progressive and innovative model of equalized financing for public school operating expenses, which shares the wealth of the state as a whole with all of the state’s school districts. The financing system for public school capital needs, however, follows a distinctly different model, relying primarily on local wealth and local taxation to raise capital finds for building and repairing school facilities. For those school districts located in areas with little taxable property, such as those with a significant acreage of federal lands within district boundaries, raising funds for capital needs through taxation is simply not possible.
This Article explores the constitutionality of the property wealth based capital financing system as the issue was raised in Zuni Public School District v. State of New Mexico, a 1998 lawsuit challenging the New Mexico school financing structure. After examining the history of school finance reform nationwide and comparing results in other states with constitutional requirements similar to those stated in the New Mexico Constitution, this Article concludes that a public school capital finance system based primarily on local wealth and taxation does not meet the clear constitutional mandates for New Mexico.
Correcting the Imbalance: The New Mexico Public Employee Bargaining Act and the Statutory Rights Provided to Public Employees
S. Barry Paisner & Michelle R. Haubert-Barela
New Mexico’s enactment of legislation providing statutory protection to public employees who organize and engage in collective bargaining is a relatively recent development. While the New Mexico Public Employee Bargaining Act (PEBA) provides, admittedly, more protection than legislation enacted in several other states, the PEBA fails to strike a true balance between public employers and their employees. This article places the PEBA in a broader context by analyzing the current status of federal and state legislation pertaining to organizational and bargaining rights in both the private and public work force, as well as New Mexico's approach to public employee bargaining prior to its enactment of the PEBA. This article also discusses possible implications stemming from the PEBA and the impact the legislation has on the ability of public workers in New Mexico to organize and bargain effectively.
New Mexico’s Accountant-Client Privilege
Robert J. Tepper
New Mexico has a legislatively enacted accountant-client privilege that, by its terms, is applicable in state court proceedings but in large measure is probably unenforceable. The statutory accountant-client privilege may be viewed as beyond the power of the legislature to enact given the New Mexico Supreme Court’s plenary power over rules of evidence, particularly testimonial privileges, and its adoption of the current rules of evidence, which lack an accountant-client privilege. Unlike the attorney-client privilege that is universally recognized, an accountant-client privilege that might limit an accountant’s testimony has been recognized in approximately one-third of the states. This article considers: the nature and justification for such a privilege, the differences between it and the attorney-client privilege, the lack of a comprehensive federal accountant-client privilege, and the current situation in New Mexico given recent developments in state case law concerning privilege. It concludes that the various New Mexico provisions addressing confidential client communications should be harmonized so as to provide clarity to accountants, lawyers, and the public concerning the protection of confidential communications between accountants and clients.
Institutional Repositories and the Principle of Open Access: Changing the Way We Think About Legal Scholarship
Carol A. Parker
Open access to scholarship, that is, making scholarship freely available to the public via the Internet without subscription or access fees, is a natural fit for legal scholarship given our tradition of making government and legal information publicly available. Law schools, journals, and scholars should espouse the principle of open access to legal scholarship, not only for the public good, but also for the enhanced visibility it provides journals and authors. Open access can be accomplished by archiving digital works in online institutional repositories. Approximately forty percent of law schools now have some form of repository.
Banishment as Cultural Justice in Contemporary Tribal Legal Systems: A Postscript on Quair v. Sisco
Patrice H. Kunesh
In recent challenges to the historical and contemporary use of banishment in American Indian societies under the habeas corpus provision of the Indian Civil Rights Act (ICRA), traditional tribal customs and practices, which have weathered the test of time and have ensured the tribe’s political and cultural survival, are being pitted against the rights of individual tribal members to fairness in their dealings with the tribe—rights in the modern era of Indian law defined in terms of constitutional-like due process protections under the ICRA. Federal courts are arbiters of these internal conflicts, wrestling with the contours of federal jurisdiction to review tribal decisions and decision-making processes and to define an individual tribal member’s due process rights under ICRA’s habeas corpus provision. These issues are closely examined in Banishment as Cultural Justice in Contemporary Tribal Legal Systems (Patrice H. Kunesh, Banishment as Cultural Justice in Contemporary Tribal Legal Systems, 37 N.M. L. Rev. 85 (2007)).
This is a postscript on that article, prompted by a federal court decision in Quair v. Sisco (Quair II), rendered contemporaneously with the publication of that article, in which the court re-assessed its own jurisdiction to review tribal banishment and enrollment decisions and adopted an analysis that mirrors the construct proposed in Banishment as Cultural Justice. The court also established new elements of habeas corpus review under the ICRA. This postscript analyzes the ramifications of the Quair II decision and concludes that the comity model, as proposed in Banishment as Cultural Justice and as mirrored in Quair II, is the appropriate framework for the review and resolution of tribal disputes arising from banishment decisions because the comity model follows tribal notions of respect for fairness and individual dignity.
